All in a day's volunteering

X v Mid Sussex Citizens Advice Bureau

The 1995 Disability Discrimination Act (DDA) provides protection to employees who have a contract of employment and workers who have a contract personally to do work, but what about volunteers who do not have a contract? The Employment Appeal Tribunal (EAT) has said in X v Mid Sussex Citizens Advice Bureau that they are not protected by either the DDA or the EU Framework Directive.

Basic facts

When Ms X became a part time volunteer for the CAB in May 2006, she signed a volunteer agreement said to be "binding in honour only … and not a contract of employment or legally binding”.

Although the CAB did not keep attendance records for volunteers, it seemed she frequently did not attend on the days she was expected, The CAB made no objection to this, nor did it object if she changed the days she came in. When she was asked to stop working as a volunteer, she claimed disability discrimination. She argued that the EU Framework Directive on Equal Treatment provided protection for volunteers and that the DDA should be read as though it provided that protection.

Relevant law

Article 3(1)(a) provides that the EU Framework Directive applies to ”conditions for access to employment, to self-employment or to occupation…”

Section 68 of the DDA states that “Employment" means ... employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly."

Section 4(1)(a) of the DDA states that it is unlawful to discriminate against a disabled person “in the arrangements” that the employer makes “for the purpose of determining to whom he should offer employment".

Section 4(2)(d) of the DDA states that "It is unlawful for an employer to discriminate against a disabled person ... by dismissing him, or subjecting him to any other detriment."

Tribunal decision

The tribunal said that Ms X was a volunteer as there was no legally binding contract between her and the CAB. In particular there was no obligation on Ms X to provide services. She was not therefore “in employment”.

The tribunal judge also concluded that the Framework Directive could not help her as the volunteer arrangement fell outside its provisions. In addition, the judge ruled that section 4(1)(a) was not of any help as “volunteering arrangements” did not come within the ambit of “employment”.

Ms X appealed, arguing that the volunteer arrangements fell within the scope of the term “occupation” in the Framework Directive, and that employment in section 68 of the DDA applied to occupation.

EAT decision

The EAT rejected this argument holding that there was no case law suggesting that the term “occupation” in the Framework Directive was intended to mean unpaid employment. Instead the term occupation relates to the rights of workers in terms of access to employment and occupation and not as extending protection beyond the ordinary understanding of paid employment.

It pointed out that when the DDA was amended in 2003, following the implementation of the Framework Directive, the Government introduced provisions in relation to “access to occupation” only. Although extensions were made to certain office-holders, “there was no extension into the volunteering sector”.

The EAT also pointed out that “the European definition of worker consistently includes the existence of mutual rights and duties (not applicable where there is no contract) and remuneration (not applicable in relation to voluntary workers)”. As there was no express provision anywhere in the Directive of what would be for the first time the extension of protection to unpaid voluntary workers, the EAT concluded that the UK Government had complied with the Directive.

It also said that the tribunal was entitled to find that the arrangements for voluntary workers at the CAB did not come within section 4(1)(a).